Baby Ferouz case heads to the High Court

Can a child born in Australia be considered an unauthorised maritime arrival?

The federal government says yes, but a Brisbane law firm plans to test the decision in the High Court.

Ferouz was born in Brisbane on November 6 after his mother, Latifar, a 31-year-old Rohingyan asylum seeker, was flown from the Nauru detention centre to the Mater Hospital following pregnancy complications.

Ferouz, who has been issued a Queensland birth certificate, suffered respiratory problems following his birth. His case first hit the headlines when it was revealed he had been separated from his mother, remaining in hospital while Latifar was locked up for 18 hours a day in the Brisbane detention centre.

Murray Watt from Maurice Blackburn lawyers, who has taken on the family's case pro-bono, lodged an application with the High Court on Friday.

He said it was just the next hurdle in the fight to allow the family remain in Australia.

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“The government has ruled that Ferouz's application for a protection visa is invalid,” he said. “They say that he came to Australia by boat, - the technical term being an unauthorised maritime arrival – essentially that he came to Australia by boat and that now makes him ineligible to apply for a protection visa.

“We argue that that is ridiculous, this boy was born in the Mater hospital in Brisbane, he cannot possibly have arrived in Australia by boat and we are challenging this decision on the basis that he is not an unauthorised maritime arrival, having been born in Brisbane.

“He has received a Queensland birth certificate. He has lived in Brisbane for every single day of his life, yet the government argues that he came to Australia by boat.

“This is a new low from the Australia government with how it deals with the children of asylum seekers – the conditions on Nauru have been described as inhumane by the United Nations and now they are trying to say that children who have been born on the mainland have come by boat as a means of stopping them from remaining in Australia and seeking the protection they are entitled from under international law.”

It's a test case which will cross over several jurisdictions and may not be heard for months. In the mean time, Ferouz, whose breath can be heard rattling in his chest, remains in Pinkenba

The outcome will not guarantee the family can stay in Australia, merely whether Ferouz is eligible to apply for a protection visa.

Before Christmas, the federal government agreed to ensure the family would receive “a fair process” before any decision to return them to Nauru was made. That agreement still stands.

Latifar and her family had fled persecution in Myanmar and spent years in Indonesia and Malaysia before attempting to reach Australia by boat. They were intercepted and sent to Nauru.